A plaintiff files a 42 U.S.C. § 1983 action against the police officers who arrested him, outlining the following facts in his complaint. The officers were called to investigate a domestic disturbance at a private residence. Upon arrival, they detected the odor of marijuana and entered the home. A struggle ensued with the plaintiff. The officers tried to arrest him, but he resisted. During the struggle, the officers used their fists, batons, OC spray, and a Taser until the plaintiff was finally subdued and arrested.
The plaintiff was charged with assaulting a police officer, resisting arrest, illegal cultivation of marijuana, possession of marijuana, and obstructing official business. During the criminal trial, the court held that the officers' entry into the home was unlawful. The plaintiff pleaded no contest to a reduced charge of misdemeanor assault, and the remaining charges were dropped. In filing the § 1983 action, the plaintiff alleged Fourth Amendment claims for excessive force, unreasonable seizure, and unlawful entry.
As a governmental defense lawyer, your case strategy is simple: argue Heck v. Humphrey, 512 U.S. 477 (1994), as a bar to the constitutional claims alleged against the officers. For the last twenty years, the Heck doctrine has been the silver bullet for § 1983 claims that would necessarily imply the invalidity of a plaintiff's previous convictions. So, you assert the doctrine, and you sleep well as you await the court's order granting your motion for summary judgment.
But then, you wake up into a nightmare. At summary judgment, the court applies the Heck doctrine, but only to bar of some of the Fourth Amendment claims. The court explains that the plaintiff's excessive force claim would be barred because the struggle between the plaintiff and the officers giving rise to the assault charge also gave rise to the excessive force claim; the plaintiff could have raised excessive force as a defense to his assault charge. However, the court holds that Heck does not bar the plaintiff's Fourth Amendment unreasonable seizure and unlawful entry claims. The reasoning is that these claims exist "separate and apart from" the assault charge and are not barred by Heck. And just like that, you are preparing for trial.The hypothetical described above is based on Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005), in which the Sixth Circuit held that Heck barred some but not all of the plaintiff's constitutional claims. This article provides a brief summary of instances when the assertion of Heck was simply not enough for the defense to overcome a plaintiff's civil claims relating to the plaintiff's prior convictions.
I. Independent Source, Inevitable Discovery, and Harmless Error
In Heck, the Supreme Court specifically addressed the limitation of its holding as it applied to Fourth Amendment unreasonable search and seizure claims as follows:
[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful.
512 U.S. at 487, n. 7 (internal citations and quotations omitted)
An example of this limitation is found in Pearson v. Weischedel, 349 Fed. Appx. 343 (10th Cir. 2009). There, a prisoner brought a § 1983 action alleging that the defendant police officers forced him to take narcotic medication during a search of his home, the effects of which caused him to reveal the location of 7.6 grams of methamphetamine in his possession. Id. at 345. The plaintiff pleaded guilty to possession of methamphetamine with intent to distribute, but subsequently filed suit against the officers for violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Id. at 346. The Tenth Circuit held that Heck did not bar the plaintiff's Due Process and Fourth Amendment claims because "doctrines like independent source, inevitable discovery, and harmless error allow a court to recognize a constitutional violation while upholding the conviction itself as constitutional." Id. at 347. Thus, even if an involuntary confession was made or a violation of the Fourth Amendment occurred during the search, there was still sufficient evidence to support the conviction that was independent of the factual allegations of plaintiff's constitutional claims. Id. To wit, there was evidence that the 7.6 grams of methamphetamine actually was found before the alleged constitutional violations, making Heck inapplicable to the plaintiff's § 1983 claims. Id.
II. Lawful Arrest Executed in an Unlawful Manner
Courts have also declined to apply Heck when alleged constitutional violations arose out of arrests that were allegedly executed in an unlawful manner. For example, in Ickes v. Grassmeyer, 2014 WL 2993778 (W.D. Pa. July 2, 2014), the plaintiff alleged that officers stopped his vehicle for alleged traffic violations and demanded that he exit the vehicle. When the plaintiff refused to depart the vehicle, an officer allegedly smashed the window of the car, dragged plaintiff out of the car over the broken glass, and tightly handcuffed his wrists, causing them to bleed. Id. at *1. The plaintiff was found guilty of resisting arrest and harassment. Id. After the conviction he filed a § 1983 claim alleging numerous constitutional violations. Id. The court held that Heck barred plaintiff's Fourth Amendment claims based on unreasonable seizure because, in order to find that the plaintiff was subject to an unreasonable seizure, the court would have to negate an element of the resisting arrest charge — that the underlying arrest was lawful. Id. at *8. However, the court simultaneously held that Heck did not bar plaintiff's excessive force claim because "a lawful arrest can sometimes be carried out in an unlawful manner." Id. Therefore, a finding that the officers used an unreasonable amount of force in the execution of the otherwise lawful arrest would not invalidate the plaintiff's convictions, and the plaintiff could proceed to trial on his excessive force claim. Id. See also Lora-Pena v. F.B.I., 529 F.3d 503, 506 (3d Cir. 2008) (holding that Heck did not present a complete bar to the plaintiff's § 1983 claim because the plaintiff's "convictions for resisting arrest and assaulting officers would not be inconsistent with a holding that the officers, during a lawful arrest, used excessive (or unlawful) force in response to [the plaintiff's] unlawful actions").
III. Civil Claims are Conceptually and Temporally Distinct from Criminal Convictions
Furthermore, courts have refused to apply Heck where the conduct that forms the basis of the constitutional claim is either "conceptually" or "temporally" distinct from the conduct forming the basis of the plaintiff's conviction. See Bush v. Strain, 513 F.3d 492 (5th Cir. 2008). As an example, in Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006), the plaintiff brought a § 1983 action after he was shot by a police officer. The plaintiff had been convicted of simple assault on a different police officer during the altercation. Id. at 399. The Fifth Circuit held that the plaintiff's excessive force claim was not barred by Heck because that claim was conceptually distinct from the simple assault charge. Id. at 401. The court distinguished a simple assault charge from an aggravated assault charge, which the court indicated would likely be barred by Heck because under those hypothetical circumstances the officer's use of force to defend himself would be a reasonable response to the threat of force by the plaintiff. Id. at 399.
Similarly, in Bush, the plaintiff brought an excessive force claim against law enforcement officers alleging that they pushed her head into the window of a car after she was arrested. The plaintiff was convicted of resisting arrest. Id. at 495-96. The Fifth Circuit held that Heck did not bar the excessive force claim because "a claim that excessive force occurred after the arrestee has ceased his or her resistance would not necessarily imply the invalidity of a conviction for the earlier resistance." Id. at 497 (emphasis added). See also Medley v. City of Detroit, 2008 WL 4279360 (E.D. Mich. Sept. 16, 2008) (noting that "courts have consistently allowed § 1983 claims arising out of allegations that the excessive force occurred after the arrest." (internal citations and quotations omitted) (emphasis added)).
For those representing governmental entities against constitutional claims stemming from arrests that have resulted in convictions, the takeaway from the above cases is that the Heck doctrine will not always win the day. Though the defense is still one of the most powerful weapons in a government attorneys' arsenal, be aware of the doctrine's limitations and how the unique facts alleged by a particular plaintiff might produce an unexpected result. After all, you do not want to get an order from the court and be left wondering where the Heck you went wrong.
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